In an effort to circumvent the legislative process, Acting Commissioner Sean M. Byrne of the Division of Criminal Justice Services sent letters to all District Attorney Offices throughout New York State imploring them to add DNA collection to all misdemeanor plea bargains.

Acting Commissioner Byrne, appointed by Governor Paterson, first suggested requiring DNA as a plea bargain condition at the annual summer meeting of the District Attorneys Association of the State of New York in July of this year. He followed this August with a letter to all 62 district attorneys in the state.

'It is obvious that there is broad support in the Legislature for expanding the DNA Databank – as there should be since doing so will save lives and exonerate innocent people,' Acting Commissioner Byrne said. 'It is equally obvious the Legislature’s inability to come to terms on a specific bill is jeopardizing the public safety.'

“It is ultimately the role of Legislature to enact a bill to expand the databank and provide New Yorkers with the protection and security they need and deserve, and I respect that role,” Acting Commissioner Byrne said. “Until then, our district attorneys can expand the databank and enhance public safety by simply conditioning every misdemeanor plea bargain on submission of a DNA sample.” (1)

Mr. Byrne does well in stroking us in all the right places, hitting the fear button with mention of jeopardizing public safety and our sense of fairness in exonerating innocent people. It is obvious that anyone standing in opposition to Mr. Byrne has a complete disregard for public safety and exonerating the innocent. That may be a valid statement but perhaps not.

Truth be told, it is all well and good to stroke that emotional side of our being but Mr. Byrne falls well short in playing to our intellect.

Last time legislation passed to expand the DNA Databank (2006), DNA collection jumped from 17,140 specimens to 73,811 specimens. This unprecedented jump in specimen collection resulted in an immense backlog of judicially time-sensitive evidence, and resulting in the use of a outside vendor. (2)

Acting Commissioner Byrne said the “stop gap remedy to Albany gridlock” would help close a “gaping and dangerous loophole” that allows 54 percent of the individuals convicted of Penal Law crimes to avoid providing a DNA sample. (1)

In 2009, 48,287 specimens were collected. Apparently and according to Byrne, this amount represents only 46% of what could have been collected had the All Crimes bill passed. He also failed to mention the 5.1% of specimens collected undergoing Administrative Removal. The DCJS Office of Forensic Services (OFS) reviews cases and remove specimens in cases wherein certain criteria or protocol are not met. (2)

The larger and more frightening issue is the bane to this young and fledgling science of DNA Profiling is the human factor.

In December 2009, the Inspector General of New York State received a referral to investigate State Police Forensic Scientist Garry Veeder who circumvented procedure and charged with falsifying records to cover up his misconduct. As a result, all 322 cases handled by Veeder (1993 to 2008) were necessitated review by an independent forensics team.

Not only did the Inspector General confirm the falsification of records and misconduct, he also observed systemic deficiencies leading all the way to the supervisory level and training process.

In the above case, Honorable Joseph Fisch, Inspector General, offered the following recommendation.

Actions by a non-expert supervisor which can be reasonably perceived as attempting to influence the expert findings of a trained forensic scientist, particularly in cases in which the supervisor has a personal association, are imprudent and create an appearance of impropriety… Yet, especially in instances when the supervisor can be viewed as having an interest in the matter, the non-scientist supervisor should avoid actions appearing to attempt to influence the expert’s findings and, when necessary, recues himself from the matter. (3)

Thus, we have the human factor. I call Mr. Byrnes invocation of those spirits Public Safety and Freeing the Innocent disingenuous. On June 29, 2010, a documented discussion took place referencing an article posted in the Journal of Forensic Science of July 2008 entitled Letter to the Editor, Sequential Unmasking: A Means of Minimizing Observer Effects in Forensic DNA Interpretation. (5)

The minutes of the commission meeting [and of which Byrne chaired] recommended that the Office of Forensic Services should conduct a survey to ensure interpretive bias is not taking place in the NYS DNA collection milieu.

NYS crime laboratories now receive accreditation through American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB). It was an audit conducted by this latter group that initiated an investigation by the NYS Inspector General.

The cost of expanded DNA collection promises to be immense, and in a year wherein 2,000 State Employees face lay-offs. Potential sponsors may include Federal grant money but that would cover a portion of the cost. Who and what will finance this enormous undertaking?

The legislative hesitance is required to ensure that we have the proper infrastructure, both administratively and economically, to handle a 56% increase in DNA collection. In matters concerning law and evidentiary proof, our intellect must prevail over the emotionality of such issues, or Scientist Veeder’s impropriety will pale in comparison to systemic deficiencies in DNA collection.